Penn State’s GC was criticized too harshly for her role in the Sandusky scandal

Pennsylvania State University never had a general counsel until January 2010, when then-University President Graham Spanier appointed Cynthia Baldwin, a private practice lawyer and former Pennsylvania Supreme Court Justice, to the position. He made the appointment following a 2009 external peer review, commissioned by then-Senior Vice President of Finance and Business Gary Schultz. Coincidence or not, Baldwin’s appointment came just weeks after Penn State received the first grand jury subpoenas in the criminal investigation of former assistant football coach Jerry Sandusky for child molestation that eventually became a national media story. Baldwin’s tenure ended when she resigned in June 2012, about a week after Sandusky’s conviction.

In November 2011, following the indictment and arrest of Sandusky, the Penn State Board of Trustees hired the law firm of former FBI Director Louis Freeh to investigate how Sandusky had repeatedly molested children for years without being turned in by Penn State administration, and what needed to be changed about university governance to ensure it wouldn’t happen again. In its July 2012, report, Freeh’s firm concluded that Spanier, Schultz, football coach Joe Paterno, and the athletic director had covered up Sandusky’s abuse of children, and that the university board of trustees had failed to understand the seriousness of the situation and the subsequent fallout.

The laying of blame in the report did not end there. General Counsel Baldwin, the report found, had failed to adequately represent the school in the face of the grand jury, had purposely kept the board of trustees in the dark about the investigation and had opposed an internal investigation. Though Baldwin came to the job many years after the incidents in question, the report generally insinuated that she helped perpetuate the cover-up.

In my opinion, the Freeh report’s treatment of Baldwin was unfounded and unfair. I don’t know Cynthia Baldwin and am not affiliated with her in any way. My interest in Cynthia Baldwin’s story centers on the report’s complete lack of understanding of what the job of a general counsel is supposed to be.

After news broke in March 2011, about the grand jury investigation of Sandusky, the school’s board of trustees continued to deal directly with Spanier and allowed him to take the lead in handling the Sandusky affair, with Baldwin advising the board as Spanier’s direct report (the GC position was included in what was called the President’s Council). Although Spanier may now face criminal charges, at the time of the investigation Spanier himself was not suspected of any wrongdoing. Baldwin had no justification to take the extraordinary measure of going around her boss to the board, which is what I think the Freeh report tries to imply. It was never Baldwin’s responsibility as general counsel either to prompt the board members to take greater interest in the Sandusky affair or to take the lead in doing damage control.

The Freeh report’s claim that Baldwin opposed an internal investigation is based on a single confidential email from Baldwin to Spanier discussing the down side of creating such a body. Just because Baldwin looked at the cons of an internal investigation does not prove that she opposed one. The board of trustees itself never raised the idea of an internal investigation (until the board commissioned Freeh’s firm). Launching a purely administrative investigation on top of an ongoing criminal investigation would not have been a good idea. Dealing with subpoenas and requests for interviews from the attorney general was Baldwin’s first order of business as general counsel.

The report comments in passing that Baldwin failed to engage outside lawyers with experience in addressing criminal investigations or conducting internal investigations when Penn State received the December 2010, subpoenas for Paterno and others to testify. I’m not aware of any rule that says an in-house lawyer has to go running to outside counsel any time trouble shows up at the door. Baldwin had been a trial judge for 16 years and also sat on the PA Supreme Court. She knew something about discovery and criminal procedure.

Finally, the Freeh report references Baldwin’s opinion that Sandusky could not be denied access to campus facilities because he held emeritus status and had not been convicted of a crime. Her answer may or may not have been legally correct, I don’t know. But Baldwin’s answer was based on legal rationale, not moral outrage. Isn’t that exactly how lawyers are supposed to respond?

The facts clearly suggest to me that Cynthia Baldwin was set up like a bowling pin. The old boys’ network in State College, PA, knew that a legal and political hailstorm was coming and they needed to start giving the right appearances if they were going to weather it. What better way than to take a former justice from the Pennsylvania Supreme Court, an African American woman who was born in an Allegheny mill town and had worked her way up from school teacher and make her the public face behind which they would wait for the storm to pass. Once Baldwin had served her purpose, the scandal had gone away and Joe Paterno had retired with pomp and circumstance, they could replace Baldwin and go about business as usual.

A general counsel can’t be any better or worse than the organization that he or she works in. It’s easy for in-house lawyers to forget that basic principle. The football-crazed Neanderthals who ran Penn State didn’t care about sexual abuse of children or bringing the monster Sandusky to justice. They only cared about the revenue stream from ticket sales and bowl contracts. Those were the kind of people Baldwin worked for and was surrounded by.

Nor was Baldwin ever truly a general counsel for Penn State. At the time of her appointment, Penn State issued a press release stating that Baldwin would only serve in a “transitional role… to help establish and organize the office, manage Penn State's legal function, and pave the way for a permanent general counsel to be hired following a national search.” The press release went on to point out that the State College-based law firm that had served as de facto general counsel for the last five decades would continue to do much of Penn State’s legal work. The release even included a quote from Spanier praising the law firm and making clear Penn State would continue to work with the firm.

If there was a written report from the 2009 external peer review leading up to the creation of the GC’s office at Penn State, I haven’t seen it. Nor do I need to see such a report to know that it would not have recommended filling the GC position on an interim basis, or that the position should share university-wide legal responsibilities with a plain vanilla local law firm at Spanier’s direction.

If Cynthia Baldwin is to blame for anything, it’s that she should not have accepted the Penn State general counsel job as the job description had been written. A general counsel needs to have the power to render final judgment on all legal matters impacting an organization, including when and how to use outside counsel. You can share day-to-day legal operations with sales departments, CFO’s, etc. But at the end of the day one person has to own legal decision making authority. We can’t know the full impact that marginalizing the Penn State GC position had on how Baldwin was perceived within Penn State and how that perception factored into Baldwin’s difficulties. The lack of clarity about who the attorney representing Penn State during the investigation was certainly hindered Baldwin.

I also think that Baldwin may have been too personally connected to Penn State to have seen how she was being used. Becoming intellectually immersed in an organization but remaining emotionally detached is the third principle underlying success as a general counsel that comes to my mind when I reflect on Baldwin’s story. It takes a great deal of discipline to maintain a line between one’s personal and professional personas while on the job. Baldwin was a Penn State alum and had previously chaired the board of trustees. For Baldwin, in the midst of the Sandusky scandal, maintaining the line between personal and professional was not humanly possible.

In the eyes of some, Cynthia Baldwin’s story should have played out like a John Grisham novel. She should have suspected a conspiracy at the highest levels, started asking questions, become drawn into a mystery, become a target of the establishment, found a smoking gun, revealed the truth and received vindication in the end. But this wasn’t fiction, it was reality, and a very ugly and sickening reality at that. The Freeh report’s characterization of Baldwin made it uglier.